FCC Talks Tough on Net Neutrality

The issue of network neutrality was back with a vengeance last week, with Comcast in the hot seat and FCC Chairman Kevin Martin leading the interrogation.

Network neutrality is an umbrella term for the debate over whether the FCC or Congress needs to spell out what broadband networks—essentially, an entity like Comcast.net that provides an Internet connection to customers—can and can't do in managing Internet traffic to their customers.

Martin said last week he thought the FCC had the authority to fine or otherwise penalize Comcast if allegations of blocking peer-to-peer file-sharing services are true. Comcast says the allegations aren't true, but according to Martin, the FCC is taking the matter very seriously.

It certainly seemed that way. At a day-long open meeting on network management practices last week, Martin repeatedly grilled pro-network-neutrality advocates about the allegations against Comcast, which was represented at the meeting by Executive VP David Cohen.

More fuel was added to the fire after activists accused Comcast of packing the meeting with its own executives. Comcast denied that but admitted to hiring line-sitters, not to keep out the public, but rather to accommodate its interested employees.

The hearing came just as a class-action suit was filed against the company in Washington, alleging that content blocking meant it was falsely advertising unfettered Internet access. Comcast wasn't commenting, but reiterated it hadn't blocked anyone or anything.

But Martin seemed particularly receptive to the activists at the hearing, even suggesting to the audience that they might want to make use of video cameras outside the hearing room to record their comments for the record. That video setup was organized by Free Press, a frequent critic of Martin's and one of the groups that had filed a complaint against Comcast.

And while trying to define “network neutrality” was the seemingly impossible quest when the issue dominated the telecom agenda in the last Congress, “What is 'reasonable network management?'” appears to be the $64,000 question this time around.

The issue is more than an academic question for content companies. Much of the bandwidth-heavy content in question is the sort of high-resolution video that studios and networks are increasingly putting on the Web.

Indeed, the other company complaining about Comcast, online content distributor VUSE, pointed out during the hearing that the content it is distributing using the peer-to-peer application includes programming from CBS, Showtime, A&E and others.

Mike McCurry, co-chair of Hands Off the Internet Coalition, the anti-regulation net-neutrality group, contends that legislation, rather than FCC enforcement of its own guidelines, could be a big problem. “[Content providers] really need to watch this debate because regulated network neutrality is a killer for them,” McCurry says. “It basically makes it impossible for network providers to manage data flow that would give the consumer a satisfactory experience.”

McCurry says that Rep. Ed Markey (D-Mass), House Telecommunications and Internet Subcommittee chairman, is clearly signaling that this will be the year for the debate because the U.S. will have a new president, a new commission and a new Congress in 2009. “It is a good time right now for people concerned, particularly the content providers, to think about what kind of universe they want to live in,” he says.

Round one of the network-neutrality battle, fought mostly in 2006, was hitched to a broader telecommunications rewrite bill that eventually went nowhere because the House was divided over the net-neutrality issue. This time, things could wind up differently.

Add Martin's grilling of Comcast to the equation last week, and it begins to look like the FCC could take action, either by trying to craft a clearer definition of acceptable network traffic management or, alternately, by implementing tougher standards imposed by a Democratic Congress.

While the FCC created the network-neutrality debate by lifting mandatory access rules on Internet service for cable, telcos and satellite, Martin said last week that he thinks the FCC has the power to make sure networks don't take advantage of that regulatory freedom to block access to content and applications. While he conceded some network management is necessary, he also said the networks should fully inform customers of what they are doing.

Whatever happens, the argument over network neutrality is certainly shifting out of neutral.